chapter  5
22 Pages

The Hijab in Strasbourg: Clear Conclusions, Unclear Reasoning

This chapter starts with an overview of the main elements of the Refah case and then proceeds to address the case within the "militant democracy" framework. It moves to argue that the militant democracy approach lacks liberal and perhaps any coherent justification for discouraging legal pluralism. Besides freedom of association, which was the construction of the argument in the Strasbourg forum, there are other important discourses deemed relevant to the problem of Refah and to the plurality of legal systems in general. Within mainstream constitutional scholarship one immediately runs into the issue of militant or self-protective democracy and the place it has within modern liberal political theory. The chapter considers some of the major arguments usually put forward against the principle of legal pluralism based on religion, in particular those used by the Strasbourg Court to reject plurality as inconsistent with democratic principles.